(Dissenting). — I. For reasons which are sufficiently set forth in my dissent in the recent case of State ex rel. Shaver v. Iowa Telephone Co., I must decline to concur in the foregoing opinion prepared by Justice Deemer.
II. I further dissent because, for reasons hereinafter stated, the correctness of the majority holding in the Shaver case may be conceded and the authority of that precedent fully admitted, and yet there remain good and sufficient reasons why it does not apply to or control the decision of the case at bar. Let us assume, for the purposes of the argument, that, under the statute as it stood when the telephone company first proposed to establish a business at Chariton, it had the legal right to enter upon and occupy the streets with its wires and poles and establish and operate an exchange without the city’s consent and without asking and receiving a local charter therefor; yet no one will deny that it was under no legal obligation or necessity to claim or exercise all its statutory rights. If it acted as it did in order to cultivate the good will of the people whom it proposed to serve, or if it preferred to accept a compromise, rather than to hold for the full measure of the grant from the state, or if, for any reason, it saw fit to ask and receive a local franchise of an expressly limited character, or, what is still more to the point, if it did not know or understand its superior right until years later, when this court discovered and announced it, it would seem to be beyond fair question in a court of equity that, when such corporation has continued in possession of the streets and in the transaction of its business under the franchise, or form of franchise, so obtained, for the full period of time therein provided for, it would not be heard to say that the act of the city was ultra vires, and that it now elects to treat its entrance into the city and its continuance therein as referable only to the statute. It stands conceded that, in the year 1894, the telephone company did apply to the city for and obtain therefrom an ordinance purporting to be the grant of a franchise for its business in that city for a period of fifteen years; and *502that, pursuant thereto, it did construct and operate its said telephone system; and that the term of such’grant had fully expired when this action was begun. So far as appears from the record, the company never based any claim of franchise on the statute independent of the action of the city until its charter from the latter had expired, and long after the enactment of Code Sections 775 and 776. Those sections were also both in force when the fifteen-year period of the company’s local charter terminated. It requires, as properly said in the Shaver case, not only the statutory grant, but also an acceptance thereof, to constitute a valid charter. An acceptance implies an intelligent assent of the mind. If a telephone company wishes to show an acceptance of a grant under this statute, it must show the fact that, relying upon the legislative grant, it took possession of -the city’s streets, and in the same reliance expended its time, labor and money in constructing and operating its system. The showing here made negatives any such acceptance and demonstrates that the defendant, instead of entering upon tliis venture in reliance upon the statutory grant, acted solely upon the ordinance grant. The one plea made, the sole ground of the demurrer, is that the grant of the ordinance' is invalid. That may be admitted, but what difference does it make ? The fact that the grant under which it chose to act was invalid makes it none the less clear that it did not so act in reliance upon the statute. Whether the ordinance grant was valid or invalid, there is nothing to indicate that either party thereto ever repudiated it or refused to observe its conditions at any time during the period to which its existence was limited, and now that it has served its purpose, it is, in effect, a contract which has been fully performed and executed, and it is a well settled general rule 'that, under such conditions, neither will be permitted to raise the plea of ultra vires. Since it has been fully performed on both sides, neither party will be heard to say that it got nothing by the deal. But again I suggest, it is wholly immaterial whether the company did or did not get anything *503of value by the ordinance franchise. The material fact is that the company sought and obtained the ordinance, and that act demonstrated that it was not. claiming a statutory right superior to the municipal authority and, for that reason, it acquired no franchise except the one (void though it may have been) which it procured from the city. Having neither claimed nor exercised any right under the statute until long after the law was so changed as to make necessary the procurement of a franchise from the city, it is in no position to demand exemption from that requirement.
Such being my view of the law, I think the decree of the district court should be reversed. I am authorized by Mr. Justice Preston to say that- he joins in this dissent.